Should Farmers Branch Raise or Fold?

I don't like the anti-immigrant rental ordinance that the suburban city of Farmers Branch has spent seven years defending in court. I was delighted last month when the 5th U.S. Circuit Court of Appeals struck it down. Last week when I saw white Farmers Branch residents on TV begging their City Council to appeal it to the U.S. Supreme Court, I thought they were fools.

But I did have a problem. Their lawyer is no fool. Michael Jung, the Dallas attorney representing Farmers Branch, has been an important force in Dallas city politics for decades as both a private attorney and an activist. I usually cross his path when he is representing neighborhood groups against developers or City Hall, but, like any top-notch lawyer, he sometimes works it from the other side of the street.

I first got to know Jung when he was a brilliant young crusader with former Dallas City Council member Larry Duncan in a successful fight to give Dallas its first zoning ordinance offering at least some protection and incentive for neighborhood stability. Before that, Dallas operated on the assumption that any neighborhood older than 25 years was "used housing" that needed to be replaced with stick-built apartment blocks and used car lots, a transition that usually enriched a member of the private Dallas Citizens Council if not the actual City Council. This was back in the 1980s when the neighborhood movement here was treated by City Hall as a local incursion of the international communist movement.

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Farmers Branch

Anyway, I knew I had to call Jung the morning after I saw that Farmers Branch council meeting on TV. I didn't say I wanted to call him. I had to call him.

The Farmers Branch ordinance requires both renters and landlords to get licenses from the city in order to enter into a rental agreement. It authorizes city officials to check to see that would-be renters are in the country legally. The ordinance includes measures that would put a landlord out of business if he got caught renting to persons in the country illegally.

The debate that night at Farmers Branch City Hall was whether the city should fold its hand and cry uncle in a court fight that already has cost the city an estimated $6 million in attorneys' fees. A big part of the pain for the public, you could tell from watching, was that the city must pay an additional two to three million the moment it says uncle, because then they're on the hook for the other side's attorneys' fees.

One resident begged them not to throw in the towel: "It would be embarrassing for us to fold our tent up, have two other cities prevail, and then we'd be the laughing stock because we paid $2 million when we didn't have to," he told the council.

Jung told me on the phone the next day that the resident had been a little bit wrong in his construction of things but not entirely. Of the three municipal rental ordinances that have gone to the federal appeals courts, two have been knocked down as unconstitutional, including Farmers Branch. But a month before the 5th U.S. Circuit Court in New Orleans voted to kill the Farmers Branch ordinance, the 8th Circuit Court in St. Louis voted to uphold the same kind of ordinance in Fremont, Nebraska.

And not just sort of the same kind, Jung told me. He said the Fremont ordinance "was copied from the Farmers Branch ordinance with just a few little tweaks."

So we have three anti-immigrant (my term) rental ordinances going to federal appeals courts — Farmers Branch, Texas; Fremont, Nebraska; and Hazelton, Pennsylvania, with varied outcomes. In Fremont, the appellate court last June upheld a law that was almost a clone of the one in Farmers Branch. Then in late July, the judges in New Orleans shot down the Farmers Branch law. Three days later the 3rd U.S. Circuit Court in Philadelphia shot down the Hazelton law, which was not similar to either Farmers Branch or Fremont.

So what does that mean? Jung says it means the issue is right in the target area where the U.S. Supreme Court shops for cases: "One of the main things the Supreme Court looks for when it takes cases is a split in the circuits," he said. "Here we have not only a split in the circuits but a contemporaneous one. All three of these decisions were within six weeks of one another."

And it even gets more splitty than that. The vote of the court in the 5th Circuit to shoot down Farmers Branch was 9-6 and produced a half dozen different opinions, some dissenting, some assenting, some doing a little bit of both. Jung said the opinions of judges on the three panels were based on a wide array of questions. He described the end product as "all over the map."

Jung thinks the extreme division of the appeals court judges on basic constitutionality makes the issue in general and the Farmers Branch ordinance in particular very likely pickups for the Supreme Court.

"The other factor that Farmers Branch is contemplating," he said, "is that the city of Hazelton has already decided to appeal. There is every reason to believe the plaintiffs in the Nebraska case will appeal. So there is a decent chance the Supreme Court is going to take up this issue whether Farmers Branch is part of it or not."

So, brilliant legal mind that I want to be, I wondered aloud why Farmers Branch shouldn't just lie back and let the other cities duke it out at SCOTUS? Farmers Branch could even go on vacation or something. But Jung reminded me that the price for stepping out of the fight for Farmers Branch now is two to three million bucks, due at the moment of saying uncle.

Oh. Yeah.

"Do we want to run the risk that we don't appeal and thereby become obligated to pay a bunch of attorneys' fees," he asked, "and somebody else does appeal and wins and proves to all the world that if we had just kept our nerve we wouldn't have had to pay all these attorneys' fees, plus we would have won and had our ordinance upheld?"

Right. You know what? This is why I do not play poker. Of course, Mike Jung is one of the lawyers who keeps getting paid if Farmers Branch appeals. The other, Jung's partner on the case, is Kansas Secretary of State Kris Kobach, who has inserted himself into these cases all over the country supposedly as a private attorney, not as a state official or politician. (Excuse me for a second while I go stick a finger down my throat.)

Kobach told Farmers Branch that staying in the fight all the way to SCOTUS could cost them about $150,000. Jung told me he thought that number "might be a little low" but not by much.

Of course, to successful lawyers $150,000 is what $150 would be to a journalist — dinner and a show, theirs in Vegas, mine in Richardson. But still. It's what Al Capone would have called "150 large."

I did reach out to Bill Brewer, the lawyer for the plaintiffs against Farmers Branch, leaving for him a question about differences he may see between the Farmers Branch 5th Circuit case and the Fremont 8th Circuit case. I was told he would get back to me. He did not. That either means he didn't want to answer my question or he wrote the message on a golf ball.

I think I wind up in the same place, either way. It's what I said at the top. I do not like the Farmers Branch law. I believe it is mean-spirited and ultimately racist. I was moved by the language of the 5th Circuit Court, providing context for its legal decision, when it said, "This country has a large Latino population and millions of Latinos live here without legal permission. However, the great majority live quietly, raise families, obey the law daily, and do work for our country. For all that they contribute to our welfare, they live in constant dread of being apprehended as illegal aliens and being evicted, perhaps having their families disrupted."

I also found the legal conclusion hard to argue with. I can't imagine an arrangement in which cities can venture out and get in the way of the federal government on what is essentially an aspect of foreign policy.

The court said: "Because the sole purpose and effect of this ordinance is to target the presence of illegal aliens within the City of Farmers Branch and to cause their removal, it contravenes the federal government's exclusive authority over the regulation of immigration and the conditions of residence in this country, and it constitutes an obstacle to federal authority over immigration and the conduct of foreign affairs. The ordinance is unconstitutional, and the judgment of the district court is affirmed."

Yeah. I'm down with that. Then again, I'm just a dinner-and-a-show-in-Richardson guy. The presence of Mike Jung at the defense table in the Farmers Branch case forces me to recognize that more must be at play in the case. At the very least, I can understand the sheer poker-playing dilemma Farmers Branch faces right now in deciding whether or not to pull the plug.

But let's do this. Let's say they do not pull the plug. So they spend another quarter million to stay in the game. Brewer's bills continue to mount. And Brewer wins. Then Farmers Branch is down for what, four million? Five? That's the outcome I'm rooting for. No pain, no gain, man. I just don't want it to be my pain.

Since 1998 Jim Schutze has been a columnist for the Dallas Observer, writing about local politics and culture. Schutze has been a recipient of the Association of Alternative Newsweeklies’ national award for best commentary twice and Lincoln University’s national Unity Award for writing on civil rights and racial issues three times. In 2003 he received the National Association of Black Journalists’ award for commentary. In 2011 Schutze was admitted to the Texas Institute of Letters.